Climie v. Appanoose County

Bishop, J. It. is provided by statute that witnesses attending upon a trial in the district court shall receive for each day’s attendance $1.25, and mileage, at the rate of five cents per mile for each mile actually traveled. If the trial attended be a criminal one, and the defendant is adjudged not guilty, the fees of witnesses shall' be paid by the county upon a certificate of the clerk showing the amount of the services to which they are entitled. Code, section 4661. By a later enactment of the General Assembly — now included in Code, section 5492 — and to prevent abuses, it was provided that- witnesses for the defense shall be subpoenaed at the expense of the county only upon the' order of the court 'or judge thereof before which the case is pending, made upon a satisfactory showing that such witnesses [294] are material and necessary for the defense. No' question is made in this case hut that the county is liable for the amount claimed by Smith for his attendance and for his mileage from the State line to the place of trial. 1. Criminal costs liability of county. The contention of the appellant is that the acceptance of service of the subpoena did not become operative until the witness came within the State, and that in no event, can it be made liable for the mileage previously traveled. As applied to the facts in this case, the contention thus made cannot be entertained, and for two reasons-, either of which is sufficient. To begin with, no power, discretionary or otherwise, is confided to the board of supervisors by any provision’ of law to sit in review upon the proceedings had before, the courts, or to pass judicially upon any question of costs accruing in connection with such proceedings. The statute provides for the taxation of court costs by the clerk thereof, and in cases of dispute or question it is for the court, to say what costs, and in what amount, shall be taxed in any case pending before it. Costs once taxed become a finality, unless set aside on a motion to retax or as the result of an appeal. In the absence of a motion to retax, or such having been made and overruled, and no appeal having been taken, and a proper certification being had, nothing remains for the board but to order payment of the fees allowed. Upon its refusal so to do suit may be brought to recover. Any other conclusion would lead to most absurd results. Cassidy v. County, 58. Iowa, 125; Wheelock v. County, 75 Iowa, 147. 2. Witness fees: non-resident. In the next place, while it is true that the attendance of a witness being in another State cannot be coerced by subpoena, yet, if he accepts service, and attend in response to a subpoena, it does not follow that mileage may nit in any ©vent, be allowed to him for the distance actually traveled, both without as well as within the State. In the case of Westfall v. County, 62 Iowa, 427, it appeared that a witness for the prosecution in a criminal [295] case pending'in this State accepted service of a subpoena in Pennsylvania, and in response thereto he came to this State, and testified upon the trial of the case. Under the Constitution the personal presence of the witness was necessary, and in view of this it was held that the witness was entitled to be compensated under, the statute allowing mileage to witnesses for the éntire distance traveled by him to reach the place of trial. In the recent case of Casley v. Mitchell, 121 Iowa, 96, we held that, where the personal presence of a witness was necessary, as for the purpose of identification and the like, the mileage actually traveled by such witness was properly taxable as.Costs, and this irrespective of whether he came from within or without the State. It can make no difference that such was- a civil case. Indeed, the reasoning upon which the holding is made to rest applies to a criminal prosecution, where life or liberty is in jeopardy, with even greater force than it does to a civil proceeding involving questions of property rights only. And controlling importance cannot be attached to the fact that in a criminal case the costs are to be' paid by the county instead of by a private party. Now, in the instant case it appears that the showing made to the court sitting for the trial of the criminal case wherein this plaintiff was defendant, was such as to warrant the conclusion that the witness Smith was wanted for identification purposes, and that his testimony was material for the defendant. With full knowledge that such witness resided in the State of California, the court, in its discretion, ordered that a subpoena issue for sueh witness. That Smith, upon receipt of the subpoena addressed to him, was under no legal obligation to obey the mandate thereof, is true, as a matter of course; The force of a subpoena, as such, issued out of a state court, is limited at best to the territorial limits of such state. But it may be considered as a writing, authenticated by the seal of the court, advising the witness that his personal presence is regarded ' by the court as essential to the administration of [296] justice iu this State, and requesting that he attend and testify as a witness. If he accept and attend, and fees are taxed in his favor, which in turn are properly certified for payment, and all without objection, we see no reason for withholding payment thereof. In what we have said foregoing we are not to be considered as holding that, had there been a motion to retax the costs, the court might not properly have refused to allow the full amount of mileage as claimed. That question is not in this case. See, however, Perry v. Co-operative Creamery Co., 125 Iowa, p. 415.— Affirmed.